Legal experts: Kelly Thomas video doesn't tell whole story

A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. It was shown at the preliminary hearing in Santa Ana Monday. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

SANTA ANA – The grainy video is difficult to watch – and, say most who've seen it, even more difficult to listen to.

As the public continues to digest the disturbing 33-minute clip of Kelly Thomas' fatal confrontation with Fullerton police last summer, legal experts caution that the footage doesn't tell the entire story, and that the culpability of two officers charged in the transient's death is something that will need to be decided by a jury.

The harrowing footage from July 5, 2011 includes Thomas, a 37-year-old schizophrenic, repeatedly apologizing to police as they try to subdue him, yelling at them that he can't breathe, and wailing for his father to help him.

But whether the black-and-white video helps support a charge of second-degree murder against Officer Manuel Anthony Ramos is not as evident as the solid visceral punch delivered by the video, interviews with law professors and current and former defense attorneys suggest.

"This is going to be a tough case," said Laurie Levenson, a professor at Loyola Law School in Los Angeles. "I don't think it's contradictory to charge one officer with murder and one with involuntary manslaughter....the attitudes of the officers – what they said before and after the incident -- are also important.

"The difference between murder vs. manslaughter is intent, and the question here is whether the officers realized the risk of their behavior. I think that will be the hardest thing to prove: Did the officers realize the seriousness of the risk involved?"

Evidence in the high-profile, emotionally charged case was tested at a preliminary hearing in Santa Ana this week. The hearing ended Wednesday after three days of testimony that included the release Monday of the explosive video --- the centerpiece of District Attorney Tony Rackauckas' case against the two officers.

Among the indelible images on the surveillance video are Ramos slowly swinging his baton as he approaches a sitting Thomas in the first frames, and the glistening pool of blood seen on the pavement near the end of the footage after paramedics whisk Thomas away.

In addition to the murder charge, Ramos, 38, has been charged with involuntary manslaughter. Cpl. Jay Patrick Cicinelli has been charged with involuntary manslaughter and excessive force under color of authority.

Levenson and other legal experts noted that the video doesn't capture the entire confrontation, and they said that although the footage shows Thomas getting struck by a baton and, later, stunned and then hit repeatedly in the face with a plastic gun by Cicinelli, the footage doesn't contain much visual evidence of a "classic beating."

Thomas died five days after the confrontation when his family took him off life support. The cause of death, according to a pathologist who testified Tuesday, was a lack of oxygen caused by having his chest compressed, as well as blood in his lungs from facial fractures and other injuries.

Another law professor said officers appear in the video to show a "consistent disregard" for Thomas as he complains about not being able to breathe while they continue to subdue him in a "dog pile-like" fashion.

"He (Thomas) was fearing for his life," said Robert Pugsley, a professor at Southwestern Law School in Los Angeles.

Pugsley questioned, however, whether prosecutors can make the second-degree murder charge against Ramos stick. Rackauckas alleges that Ramos initiated the encounter.

"I see it more likely that he (Ramos) might be found guilty of involuntary manslaughter," Pugsley said.

A murder conviction against Ramos, who is free on $1 million bail, would make him eligible for a possible prison sentence of 15 years to life. Cicinelli, who is free on $25,000 bail, faces four years in prison if convicted.

Prosecutors are pursing the murder charge against Ramos under the theory that Thomas died as a result of an intentional act, that his death resulted as a natural consequence of an act that was dangerous to human life, and that Ramos deliberately acted with a conscious disregard of human life.

To secure a second-degree murder conviction, Rackauckas doesn't need to prove that Ramos intended to kill Thomas, but rather that his life-threatening acts were intentional --- much like a reckless driver who ends up killing someone after deciding to speed in and out of traffic, Pugsley said.

Based only on evidence seen in the video, Pugsley said that a second-degree murder charge is perfectly appropriate, but it may be easier to convince a jury that Ramos and Cicinelli should have known, but didn't know, that their actions created a substantial risk of death – the bar that needs to be met for an involuntary manslaughter conviction.

A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. It was shown at the preliminary hearing in Santa Ana Monday. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. It was shown at the preliminary hearing in Santa Ana Monday. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. It was shown at the preliminary hearing in Santa Ana Monday. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. It was shown at the preliminary hearing in Santa Ana Monday. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
Fullerton police officer Jay Cicinelli listens to witness testimony during Monday's preliminary hearing in Santa Ana. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
Fullerton police officer Manuel Ramos listens to witness testimony during Monday's preliminary hearing in Santa Ana. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
Ron Thomas speaks to the media after Tuesday's preliminary hearing in Santa Ana. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER
Wednesday afternoon, a Fullerton police car with two officers cruises past the memorial for Kelly Thomas at the Fullerton Transportation Center. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER
A hat , similar to the one seen in a photo often published of Kelly Thomas, is taped to the light pole in the Fullerton Transportation Center. The pole has been the center of a memorial for Thomas after the community reacted to his death. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER
At the Fullerton Transportation center, fresh flowers sit at the base of a memorial for Kelly Thomas. Today a judge will hand down his decision as to whether two Fullerton police officers will face a jury on charges of Second degree murder and manslaughter. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER
A large stuffed gorilla adorns the memorial for Kelly Thomas. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER
A pretrial hearing in downtown Santa Ana continues to determine if two Fullerton police officers will face charges in the death of Kelly Thomas. In Fullerton, at the scene of the confrontation that resulted in his death, there is still a memorial to him. Before a verdict was reached on Wednesday afternoon is was a quiet scene. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER
Most of the chalk writing has been washed away from the Kelly Thomas memorial at the Fullerton Transportation Center but some new additions represent mourners sentiments. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER
Most of the chalk writing has been washed away from the Kelly Thomas memorial at the Fullerton Transportation Center but some of the more permanant decorations remain. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER
As the pretrial hearing in downtown Santa Ana continues to determine if two Fullerton police officers will face charges in the death of Kelly Thomas, all is quiet at the memorial for Thomas in Fullerton. In the bus lane near Thomas' memorial, at the Fullerton Transportation Center, a spray-painted question mark remains. BRUCE CHAMBERS, THE ORANGE COUNTY REGISTER

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